Independent Trustee Company Limited v Hazledine
[2019] NZHC 2581
•10 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-002154
[2019] NZHC 2581
UNDER Section 52 of the Trustee Act 1956 IN THE MATTER
of Hazledine Family Trust
BETWEEN
THE INDEPENDENT TRUSTEE COMPANY LIMITED
Applicant
AND
SUSAN ITHONA HAZLEDINE
Respondent
Hearing: On the papers Counsel:
D B Webster for the Applicant
No appearance by or on behalf of the Respondent
Judgment:
10 October 2019
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Thursday, 10 October 2019 at 4:30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
Solicitors: Webster Law, Auckland
THE INDEPENDENT TRUSTEE COMPANY LIMITED v HAZLEDINE [2019] NZHC 2581 [10 October 2019]
[1] The Independent Trustee Company Limited (applicant) and Susan Ithona Hazledine (respondent) are the two trustees of the Hazledine Family Trust (Trust). The trustees are currently registered as proprietors as to one-half share as tenants in common of two properties at Mangakino. The respondent, Ms Hazledine, is however now incapacitated. She used to live in one of the properties, but is now in a rest home. She wholly lacks capacity to safely make and communicate decisions about her personal care and welfare and property. The applicant, therefore, seeks both procedural and substantive orders which would enable the two Mangakino properties to be sold. To do so, it is necessary to remove Ms Hazledine as a trustee and for an order made vesting the trustees’ interests in the properties in the sole name of the applicant.
Procedural orders
[2] The applicant applies for an order for leave to commence these proceedings by way of an originating application under Part 19 of the High Court Rules and for directions that service on Ms Hazledine and the beneficiaries be dispensed with.
[3] I am satisfied that this proceeding is suitable to be brought by way of originating application because the sole relief sought are orders pursuant to the Trustee Act 1956. The core facts are undisputed and the application is unopposed. The application does not require detailed pleadings or interlocutory orders for its fair resolution. Prompt disposal of the proceeding is also desirable.
[4] I am also satisfied that service on Ms Hazledine and the beneficiaries should be dispensed with. Ms Hazledine is mentally incapable and due to her incapacity, service on her would serve no useful purpose as she would be unlikely to understand either the nature of legal advice or the purpose of the proceedings.
[5] As for the beneficiaries, the primary beneficiary of the Trust is Ms Hazledine. The secondary beneficiaries are Karen Freda Blood and Nichola Ithona Moore, who are Ms Hazledine’s daughters, together with their spouses and their children and remoter issue. All adult secondary beneficiaries have consented in writing to this application being made. The orders sought also do not change any of the beneficiaries’ rights and do not affect the obligations which the trustees have to all beneficiaries or
the rights or entitlements which beneficiaries have in respect of the trustees or trust property.
[6] In the circumstances, it is also appropriate that the application be made without notice. Undue delay would be otherwise caused.
[7]Accordingly, there will be procedural orders as follows:
(a)Leave to commence these proceedings by way of an originating application under Part 19 of the High Court Rules is granted; and
(b)Service on Ms Hazledine and the other beneficiaries is dispensed with.
Substantive orders
[8] As already noted, Ms Hazledine has been assessed as being mentally incapacitated. The applicant seeks an order of the Court removing Ms Hazledine as a trustee to the intent that the applicant would remain as the sole corporate trustee of the Trust.
[9] It is intended, together with the owner of the other one-half share, that the Mangakino properties be sold which would enable the Trust to be wound-up as the Mangakino properties are the only assets of the Trust. To that end, an agreement has been entered into for the sale of 39 Mountview Close, Mangakino. The purchaser of the property has agreed to delay settlement until orders as sought by this application have been granted and subsequently registered on the record of title. It is intended that the property at 5 Mountview Close, Mangakino, where Ms Hazledine was living until she went to live in a rest home, also be sold. It is on the market at present.
[10] In order to register a change of trustees on the title to the Mangakino properties, Authority and Instruction (A&I) forms for electronic LandOnLine transactions need to be signed. Land Information New Zealand requirements provide that a signatory who is acting in their capacity as a trustee and who is incapacitated or subject to an order under the Protection of Personal and Property Rights Act 2001 cannot sign documents relating to land transactions. This means that Ms Hazledine cannot sign
the A&I form required to transfer the Mangakino properties into the name of the applicant as continuing trustee. An order is sought therefore under s 52 of the Trustee Act vesting the Trust’s interests in the Mangakino properties in the sole name of the applicant. As noted, all adult secondary beneficiaries have consented.
[11] I am satisfied that the substantive orders sought are also appropriate. Accordingly, I make the following orders:
(a)An order pursuant to Court’s inherent jurisdiction removing Susan Ithona Hazledine as a trustee of the Hazledine Family Trust to the intent that the Independent Trustee Company Limited will remain as the sole corporate trustee of the Trust and will have the power to appoint new trustees under Clause 4.3 of the Trust Deed.
(b)An order pursuant to s 52 of the Trustee Act 1956 vesting in the name of The Independent Trustee Company Limited, the one-half share of the properties at 5 Mountview Close, Mangakino (being described as 1067m2 more or less being Lot 5 Deposited Plan South Auckland 61117, Record of Title SA51C/700) and 39 Mountview Close, Mangakino (being described as 1043m2 more or less being Lot 39 Deposited Plan South Auckland 61118, Record of Title SA51C/771), presently held by Susan Ithona Hazledine and The Independent Trustee Company Limited as trustees of the Hazledine Family Trust.
Woolford J
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